[2013] KEHC 1362 (KLR)
The court found that the prosecution had established the offence of defilement beyond reasonable doubt. The complainant's age was sufficiently proved by both school records and a clinical officer's age assessment report. The evidence of the complainant (PW1) was corroborated by PW2, and the appellant was positively...
Source-derived case information.
- Citation
- [2013] KEHC 1362 (KLR)
- Parties
- Appellant: Justus Momanyi Ondieki alias Mrefu; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kericho
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 90 of 2012
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal dismissed; conviction and sentence upheld
- Judges
- B Ongaya
- Legal Topics
- Defilement, Sexual Offences, Standard of Proof, Age Assessment, Corroboration of Evidence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Justus Momanyi Ondieki alias Mrefu
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the trial court erred by failing to frame issues for determination.
- 2 Whether the age of the complainant was properly established to sustain a conviction for defilement.
- 3 Whether there was sufficient evidence to support the conviction for defilement.
Ratio Decidendi
The court found that the prosecution had established the offence of defilement beyond reasonable doubt. The complainant's age was sufficiently proved by both school records and a clinical officer's age assessment report. The evidence of the complainant (PW1) was corroborated by PW2, and the appellant was positively identified as a neighbour known to the complainant. The court held that the trial court did not err in its findings, and the conviction and sentence were proper. The appeal was therefore dismissed, and the conviction and sentence of life imprisonment were upheld.
Court Disposition
appeal dismissed; conviction and sentence upheld
Orders
- The conviction of the appellant is upheld.
- The sentence of life imprisonment is upheld.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KERICHO
CRIMINAL APPEAL NO. 90 OF 2012
(Being an Appeal Against the Original Conviction and Sentence by the Honourable J. Kasam, Acting Senior Resident Magistrate at
Sotik in Criminal Case No. 64 of 2012 in the Judgment Delivered on 21. 12. 2012)
JUSTUS MOMANYI ONDIEKI ALIAS MREFU.......APPELLANT
-VERSUS-
REPUBLIC....................................................................RESPONDENT
(Before Hon. Justice Byram Ongaya Thursday 24th October, 2013)
JUDGMENT
The appellant is Justus Momanyi Ondieki alias Mrefu. He was charged with the offence of defilement contrary to Section 8(1) (2) of the Sexual Offences Act No. 3 of 2006. He was convicted as charged and sentenced to life imprisonment.
The appellant has appealed against the conviction and sentence. His grounds of appeal include that:
the honourable trial court failed to frame issues for determination ;
there was no documentary evidence that complainant was 10years and the offence of defilement was therefore not sustainable and the age assessment report was by an unqualified person;
there was no evidence of defilement and the conviction was therefore not sustainable as the prosecution evidence was riddled with contradictions; and
the sentence of life imprisonment was excessive and harsh.
The appellant submitted that he pleaded for leniency if he may have committed the offence. He did not make any specific submissions to support the grounds of appeal.
The learned state counsel Mrs. Muthe opposed the appeal on behalf of the respondent. She made the following submissions:
The crucial element in criminal proceedings was the establishment of the offence by the prosecution beyond any reasonable doubt and not framing of issues for determination.
The appellant had not established any inconsistencies in the prosecution evidence.
The age of the complainant had been established as 10 years, she was in nursery school and there was no doubt that she was a minor. The age assessment report Exhibit P 2 (d) by PW6 the clinical officer confirmed the age of PW1.
PW2 corroborated PW1’s evidence as per section 24 of the Evidence Act and there was adequate evidence to convict the appellant as charged.
PW1 and PW2 confirmed that the appellant was a neighbour and known to them as Marevu also written as Mrefu in the trial court’s record and there was no doubt about the appellant being known to the complainant.
This court has considered the submissions made for the parties and examined the record and judgment by the honourable trial court. The appellant was known to PW1 and PW2 corroborated PW1’s evidence. The court finds that the submissions made for the respondent are valid.
Accordingly, the conviction and the sentence are upheld and the appeal is dismissed.
Signed, datedanddeliveredin court atKerichothisThursday, 24th October, 2013.
BYRAM ONGAYA
JUDGE